Sexual Orientation and Gender Identity Are Now Protected Classes under Fair Housing Laws

On February 11, 2021, the Department of Housing and Urban Development (HUD) issued a Memorandum stating that discrimination on the basis of sexual orientation and gender identity is forbidden under the sex discrimination of the Fair Housing Act. HUD also stated that it would review any complaints based on sexual orientation or gender discrimination filed on or after January 20, 2020. As federal Fair Housing complaints must be filed within one year of alleged discrimination this effectively retroactively protects sexual orientation and gender identity beginning January 20, 2019 (if the claim was filed within one year).

The Memorandum also affects state and local agencies that enter into agreements with the Department under the Fair Housing Assistance Program (FHAP), pursuant to which such agencies process discrimination complaints under laws that the Department certifies as “substantially equivalent” to the Fair Housing Act. To remain “substantially equivalent” the state or local law either must explicitly prohibit discrimination because of gender identity and sexual orientation or must include prohibitions on sex discrimination that are interpreted and applied to include discrimination because of gender identity and sexual orientation.

As HUD memoranda and guidance are not actual changes to laws, they do not have the full weight of laws. The memoranda and guidance just explain how HUD interprets existing laws.

Sometimes we question the accuracy of HUDs interpretations but as HUD, state and local agencies who must follow HUD memoranda will be proceeding under the memoranda most property management.

firms under that the cost of winning a fight with HUD by appealing HUD decisions to federal court and

likely ultimately to the appellate level will be very costly. In this case the HUD memoranda was based on a ruling by the Supreme Court in a similar case involving alleged sexual orientation and gender identity discrimination in someone’s job. For these reasons most property management

firms treat HUD memoranda and guidance as law. As the HUD Memorandum we have been discussing is based on a Supreme Court opinion it is very unlikely that any challenges to it will be ultimately successful, so following it, besides being the fair and equitable thing to do, is also the most prudent.

As an additional note, property management firms have been subject to NC Real Estate laws prohibiting sexual orientation based on gender discrimination for many years now, so this change in the federal law may cause some slight changes in language of policies but should not cause any large shifts.